Tendai Gukutikwa
Health Reporter
THE Constitutional Court has set aside a High Court judgment that sought to recognise mental health as a ground for lawful termination of pregnancy, leaving existing legislation unchanged, while core constitutional questions remain unanswered.
In its October 14, 2026 determination in Community Working Group on Health (CWGH) and Ms Nyasha Batitsa versus Minister of Health and Child Care and others, the court declined to confirm declarations that certain provisions of the Termination of Pregnancy (TOP) Act were unconstitutional.
The court found that the High Court had not completed the constitutional analysis required to invalidate the provisions, but did not determine that the challenged exclusions were constitutional on their merits.
The case has brought renewed attention to the circumstances of women with serious mental health conditions and girls with mental disabilities, who become pregnant, including those who may have experienced sexual exploitation.
In an interview, CWGH executive chairperson, Mrs Maria Chiwera, said the challenge is about whether legislation enacted decades ago adequately reflects the understanding of health and constitutional rights under the Constitution.
“In terms of the Termination of Pregnancy Act, it permits termination only within the specified statutory circumstances,” she said.
CWGH and Ms Batitsa had challenged Section 4(a) of the Act, which provides for termination where continuing a pregnancy endangers a woman’s life or poses a serious threat of permanent impairment to her physical health.
Mrs Chiwera said mental health has increasingly been recognised as an integral part of overall health, yet the Act does not expressly identify it as an independent ground under that provision.
“As time has progressed, understanding different issues has also progressed. Mental health has also been viewed as a standalone, but inclusive part of health as well,” she said, further arguing that some women with pre-existing psychiatric conditions can experience serious deterioration during pregnancy, with potentially severe consequences for their well-being.
Mrs Chiwera said there are circumstances in which continuing a pregnancy can have serious implications for a woman’s mental health.
She said the court application relied on expert psychiatric evidence and raised concerns about suicide, postpartum psychosis and long-term psychological harm.
“Our challenge also covered the definition of unlawful intercourse under Section 2(1) of the Act where we argued that it did not adequately cover pregnancies arising from sexual conduct criminalised under Section 106 of the Mental Health Act. The issue is particularly relevant to women and girls with mental disabilities who may experience sexual exploitation or encounter difficulties communicating their experiences and accessing appropriate services,” she said.
The High Court ruled in favour of the applicants on November 11, 2025, declaring the challenged provisions unconstitutional to the extent identified in its judgment. It suspended the declarations for 18 months, subject to confirmation by the Constitutional Court.
However, the Constitutional Court set aside that judgment after finding that the required constitutional inquiry had not been completed, including an assessment of whether any limitation of protected rights was justified under Section 86(2) of the Constitution.
The Act therefore remains unchanged by the proceedings, and the determination did not create a new express ground for termination based on mental health. Beyond the legal proceedings, the case has brought into focus the importance of recognising and addressing mental health difficulties during pregnancy and after childbirth.
The Manica Post took to the streets of Mutare to hear residents’ views on whether women with serious mental health conditions and girls with mental disabilities should be included, among those who may lawfully terminate a pregnancy, and their perceptions of the Constitutional Court ruling.
Some residents felt that mental health should be considered because pregnancy can worsen an existing psychiatric condition, while others raised concerns about how such a provision will be applied and the protection of unborn children.
Ms Lyn Mlambo supported the proposed inclusion, saying the law should take into account the realities faced by women whose mental health can be seriously affected by pregnancy.
“Someone who is already struggling with a serious mental health condition should not have to wait until the situation becomes dangerous before her circumstances are considered. Mental health is part of a person’s overall health, and the law should recognise that,” she said, adding that the ConCourt ruling left an important question unanswered.
“The court has not said that mental health should never be a ground for termination. It has said the legal process was not properly completed. That means the issue is still there and needs to be addressed carefully,” she said.
Mrs Chengeto Chafanza said the issue is particularly concerning where a girl or woman with a mental disability becomes pregnant following sexual abuse or circumstances in which she cannot fully understand or communicate what happened to her.
“We must look at the circumstances surrounding the pregnancy. If a girl with a mental disability has been sexually abused, we should not only ask what the law says about termination. We should also ask how she will cope with the pregnancy, whether she understands what is happening to her and what support she will receive,” said Mrs Chafanza, adding that such cases require sensitive handling by health professionals, social workers and the justice system, rather than assumptions that every woman with a mental health condition would have the same needs.
“Not every person with a mental health condition is the same. Some may be able to make decisions with support, while others may need much more assistance. Their individual circumstances must be considered, and they should not be abandoned to deal with the consequences alone,” she said.
However, others opposed widening the grounds for termination to expressly include mental health, arguing that the provision could be difficult to apply consistently and that other forms of assistance should first be considered.
“I do not think mental illness alone should automatically become a reason to terminate a pregnancy. There are different levels of mental health conditions, and not every woman who experiences a mental health problem is unable to carry a pregnancy. We should first look at treatment, counselling and family support,” said a resident who elected anonymity.
He said any changes to the law would need clear safeguards to prevent the provision from being misused.
“If the law is changed, there must be clear guidelines on who qualifies and who makes that decision. We must protect women who are genuinely at risk, but we must also take the responsibility involved seriously. It should not be a decision made without proper medical assessment,” said the resident.
For CWGH, however, the question remains whether the Termination of Pregnancy Act should expressly recognise serious mental health conditions and more clearly accommodate pregnancies arising from sexual conduct covered by the Mental Health Act.
The Constitutional Court did not resolve those questions on their substantive merits. Its determination instead established that the High Court had not completed the constitutional analysis necessary to invalidate the challenged provisions.
As the existing law continues to apply, the relationship between reproductive healthcare, mental health and the legal protections available to women and girls remains an issue for further consideration.
ConCourt leaves mental health questions unresolved
